Gray v Formosa Quiz and Flashcards: Case Study Review

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Questions and Answers

According to Lord Campbell, what is not allowed by a civilized state?

Entering into a contract in a foreign country

Why is the marriage between a Jewish man from Egypt and his niece from England invalid?

Because it is prohibited by English law

What is necessary for a marriage to be recognized?

Capacity to marry in the place of domicile

What is the main problem with applying the Dual Domicile Theory?

It may lead to problems with capacity to marry Signup and view all the answers

What is the main advantage of the Intended Matrimonial Domicile Theory?

It allows for easier recognition of foreign marriages Signup and view all the answers

What is the main critique of the Intended Matrimonial Domicile Theory?

It allows parties to evade restrictions imposed by their domicile Signup and view all the answers

In which case was the Intended Matrimonial Domicile Theory applied?

Sottomayor v. De Barros (No.1) (No.2) Signup and view all the answers

What is the main reason for recognizing marriages according to the Intended Matrimonial Domicile Theory?

To recognize marriages that are valid in the place of intended domicile Signup and view all the answers

What is the basis for granting a nullity decree under Section 13 of the Matrimonial Causes Act, 1971?

The marriage was not consummated due to wilful refusal of Respondent Signup and view all the answers

When will the court not grant a nullity decree under Section 13(b), (c), or (d)?

If marital intercourse with consent of the Petitioner has taken place since the discovery of the facts Signup and view all the answers

What is the time limit for instituting proceedings under Section 13?

One year from the date of marriage Signup and view all the answers

What is the consequence of a spouse being absent for seven years?

The spouse is presumed to be dead Signup and view all the answers

What is the purpose of Section 33 of the Evidence Act?

To declare a spouse dead after seven years of absence Signup and view all the answers

What is the new status acquired after marriage?

Mrs. Signup and view all the answers

What is the effect of a nullity decree?

The marriage is void Signup and view all the answers

Under which Act can proceedings be brought to nullify a marriage?

Matrimonial Causes Act, 1971 Signup and view all the answers

What happens if a couple intends to settle in a particular country after marriage but never does so?

The courts will investigate their intentions Signup and view all the answers

What is the proposed approach to dealing with marriages that are invalid under the domicile laws?

A flexible approach to saving marriages Signup and view all the answers

What happens if a couple's marriage is formally valid under the lex loci celebrationis but essentially invalid under the lex loci celebrationis?

The marriage is invalid under the intended matrimonial home test Signup and view all the answers

What is the role of the clergyman in determining the validity of a marriage?

The clergyman's beliefs can influence the court's decision on the validity of a marriage Signup and view all the answers

What is the main issue with the Maltese nullity decree in the Gray v. Formosa case?

It was flagrantly unjust to the wife and children Signup and view all the answers

What is the central issue in determining the validity of a marriage under the dual-domicile test?

The couple's domicile at the time of marriage Signup and view all the answers

What is essential validity in the context of marriage?

The capacity of the parties to marry Signup and view all the answers

What is the purpose of the intended matrimonial home test?

To save marriages that would otherwise be declared void Signup and view all the answers

What is the Dual Domicile Theory in the context of marriage?

A theory that both parties must have capacity to marry under the laws of their domicile Signup and view all the answers

In the case of Brook v. Brook, what was the issue with the marriage?

The husband married his deceased wife's sister Signup and view all the answers

What is the main reason why the English court refused to recognize the Maltese nullity decree in the Gray v. Formosa case?

Because it offended against English notions of substantial justice Signup and view all the answers

What is the significance of the lex loci celebrationis in the context of marriage?

It is the law that governs the formal validity of a marriage ceremony Signup and view all the answers

What is the result of not having capacity to marry under the laws of one's domicile?

The marriage is invalid Signup and view all the answers

What is the intended matrimonial home theory in the context of marriage?

A theory that the law of the intended matrimonial home governs the essential validity of a marriage Signup and view all the answers

What must be considered when bringing a decree of divorce from anywhere in the world to Ghana?

If the decree was granted through judicial process or otherwise, if it is in accordance with natural justice, and if the Tribunal had a substantial connection to the parties or the place of ordinary residence of the parties Signup and view all the answers

What condition must a decree of divorce meet to be recognized as valid by the Ghanaian court?

It must be granted by a court that had a significant and substantial connection with the parties Signup and view all the answers

What is meant by 'Significant and Substantial Connection' in the context of recognizing foreign decrees of divorce?

The connection between the parties and the domicile of the parties Signup and view all the answers

What is an extra-judicial body in the context of recognizing foreign decrees of divorce?

A body that operates outside the normal judicial system Signup and view all the answers

On what grounds would a foreign decree of divorce be refused recognition in Ghana?

Fraud, lack of jurisdiction, and natural justice Signup and view all the answers

What is the rule under which judgments of any country in the world are potentially enforceable in Ghana?

Under the common law rule Signup and view all the answers

What is a condition for recognizing a decree of divorce obtained by judicial process or otherwise?

It must be in accordance with natural justice Signup and view all the answers

What is required for a Tribunal to have a significant and substantial connection with the parties?

The Tribunal must have a domicile connection with the parties Signup and view all the answers

Study Notes

Essential Validity of Marriage

Essential validity refers to the capacity to marry, considering factors such as age, already subsisting marriage, and consanguinity between the parties.
The law governing essential validity is divided into two theories: Dual Domicile Theory and Intended Matrimonial Home Theory.

Dual Domicile Theory

Both parties must have capacity under the laws of their domicile to marry.
A marriage is invalid unless, according to the law of the domicile of both contracting parties at the time of the marriage, they each have capacity to contract that particular marriage.
Example: Brook v. Brook (1861) 9 HLC 193, where the English rules on consanguinity were stricter than in Denmark, and the marriage was invalid under English law.

Intended Matrimonial Home Theory

Wherever the parties intend to stay in matrimony, they must have the capacity to marry there.
Example: A man cannot marry another man in Massachusetts and expect to be recognized in Ghana.
Cases: Mette v. Mette (1859) 1 Sw Tr 416, Brook v. Brook (1861) 9 HLC 193, Sottomayor v. De Barros (No1) No (2), Radwan v. Radwan Fam 35.

Critique of Intended Matrimonial Home Theory

Allows parties to evade restrictions imposed by their domicile.
Raises questions about the validity of the marriage if the parties never intend to settle in the country where they got married.

Proposal

Oppong and Agyebeng propose a flexible approach to save apparently contracted marriages, rather than declaring them void.

Jurisdiction of the English Court to grant a Nullity

Similar rules govern the jurisdiction of the English courts to grant nullity decrees under Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973.

Nullity of a Marriage in Ghana

Proceedings can be brought to nullify a marriage due to lack of capacity to marry.
Section 13 of the Matrimonial Causes Act, 1971 (Act 367) outlines instances where a Decree of Nullity will be granted, including:
- Non-consummation due to wilful refusal of the respondent.
- Either party being of unsound mind or subject to recurrent attacks of insanity.
- The respondent being pregnant by another person at the time of marriage.
- The respondent suffering from an incurable venereal disease.

Presumption of Death and Dissolution of Marriage

If a spouse cannot be found for seven years, they are presumed to be dead under the Evidence Act.
Section 33 – Death After Seven Years Absence.

Declaration as to Status

When a person gets married, they have a new status (e.g., Mrs.).
Section 36: Anytime a decree of divorce is brought from anywhere in the world to Ghana, it must be considered whether it was subjected to judicial process, in accordance with natural justice, and has a substantial connection to the parties or their place of residence.

Recognition of Foreign Decrees

Court shall recognize as valid a decree of divorce, nullity, or presumption of death and dissolution of marriage obtained by judicial process or otherwise, which is not contrary to natural justice, and has a significant and substantial connection with the parties to the marriage.
The connection can be through domicile or ordinary residence.

Attacking Foreign Decrees

Foreign decrees can be refused recognition on grounds such as fraud, where the foreign court was induced by fraud to assume jurisdiction.

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Gray v. Formosa Case Study